FILED

United States Court of Appeals

Tenth Circuit

September 29, 2014

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

DAVID W. VEREN,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
DEPARTMENT OF JUSTICE;
HARLEY G. LAPPIN, Director,
Federal Bureau of Prisons; MARY
HERNDON, Administrator, U.S.
Marshal Service; MONA SMITH, ISM
Officer, Federal Correctional
Institution Florence; FNU TSUDA,
Staff Doctor, Federal Correctional
Institution, Englewood; FNU KRAUS,
Staff Doctor, Federal Correctional
Institution, Englewood; MARK
IPPOLITO, Health Services
Administrator, F.D.C., Englewood,

No. 14-1157
(D.C. No. 1:13-CV-00235-RM-MJW)
(D. Colo.)

Defendants - Appellees.

ORDER AND JUDGMENT *

Before GORSUCH, MURPHY, and McHUGH, Circuit Judges.

After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Four years after the statute of limitations expired, David Veren filed suit
seeking damages from prison officials. The district court dismissed his claims as
barred by the statute. Mr. Veren now asks us to overturn that result. He points
primarily to the fact the limitations period for his suit may be statutorily tolled for
persons under disability. Colo. Rev. Stat. 13-81-103. He says he was
disabled within the meaning of the statute for a considerable time and as a result
his lawsuit should be treated as timely filed.
Like the district court before us, we cannot agree. To invoke the applicable
statutory tolling provision successfully a petitioner must show either that he was
mentally incompetent or under a legal disability with no legal guardian. See
id. 13-81-101(3). But this Mr. Veren has failed to do. Mr. Veren claims that he
suffered from (among other things) an affective disorder and clinical depression.
But under Colorado law such conditions generally are not sufficient to establish
mental incompetence. See id. 27-10.5-135; Southard v. Miles, 714 P.2d 891,
898-99 (Colo. 1986) (noting that the term suggests a disorder that grossly
impairs judgment or capacity to recognize reality or to control behavior (quoting
Colo. Rev. Stat. 27-10-102(7)). Neither has Mr. Veren been declared by a court
to be under a legal disability. See James v. Brookhart Lumber Co., 727 P.2d
1119, 1121 (Colo. App. 1986) ([I]n order for a person to be deemed under a
disability . . . [he] must petition the court for a specific finding as to the

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existence of a legal disability.). To be sure, Mr. Veren claims that he was

legally disabled because the Social Security Administration deemed him disabled
for purposes of the Social Security Act. But to be found disabled under that Act,
a person need only show that hes incapable of substantial gainful activity a
standard different than that found in Colorados statutory tolling provision. See
42 U.S.C. 423(d)(2)(A).
Lacking a basis for statutory tolling, Mr. Veren seeks equitable tolling. But
under that doctrine the statute of limitations may be tolled only if truly
extraordinary circumstances prevented the plaintiff from filing his or her claim
despite diligent efforts. Brodeur v. Am. Home Assurance Co., 169 P.3d 139, 149
(Colo. 2007) (quoting Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094,
1096 (Colo. 1996)). We fail to see how Mr. Veren can satisfy that test. During
the period in question he filed a request for an administrative remedy and notified
one of the defendants about alleged illegal behavior. It does not appear that any
extraordinary circumstances prevented him from also timely filing the complaint
he has filed now.

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The judgment is affirmed and the motion to proceed on appeal in forma

pauperis is denied. Mr. Veren is reminded that he must pay the filing fee in full.

ENTERED FOR THE COURT

Neil M. Gorsuch
Circuit Judge

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